Can an infidelity clause in the prenuptial agreement waive the duty of providing child support of a spouse?

Full question:

My wife and I had a prenuptial agreement signed before our marriage which stated that I would not be paying any child support for the kids we have during our marriage if the marriage ended due to her infidelity. 12 years and 2 kids later I find my wife cheating on me with one of my friends. I have filed for divorce and my wife’s attorney has put in a claim for child support giving reason that she cannot support them on her income. Is she legally permitted to violate the child support clause in the prenuptial agreement?

• Category: Husband and Wife
• Subcategory: Premarital Agreement
• Date: 04/07/2025
• State: California

Answer:

Essentially, a prenuptial agreement is an agreement made by a couple before they marry concerning the ownership of their respective assets in the event that their marriage fails. The Cal Fam Code § 1612 permits certain contractual agreement between spouses that are enforceable. It reads:

“(a) Parties to a premarital agreement may contract with respect to all of the following:
 (1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
 (2) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
 (3) The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
 (4) The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
 (5) The ownership rights in and disposition of the death benefit from a life insurance policy.
 (6) The choice of law governing the construction of the agreement.
 (7) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
(b) The right of a child to support may not be adversely affected by a premarital agreement.
(c) Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement. An otherwise unenforceable provision in a premarital agreement regarding spousal support may not become enforceable solely because the party against whom enforcement is sought was represented by independent counsel.”

A prenuptial agreement may not include the following based on the provisions laid out in Cal Fam Code § 1612:

1. custody of the children;
2. visitation to the children;
3. child support;
4. anything “illegal” (as with most contracts); and
5. anything “unconscionable” (unfair)
6. anything that is thought to encourage divorce;

Per the provisions discussed under Cal Fam Code § 1612 above it is reasonable to conclude that a prenuptial agreement to the extent to which it denies child support is invalid and not legally enforceable in California.